Summary of April 25, 2018 Member Meeting

Post date: May 14, 2018 9:10:40 PM

Alliance for Regulatory Coordination

Summary of Member Meeting

Meeting Date: April 25, 2018

Location: Associated Builders and Contractors (ABC) of Wisconsin, Madison, Wisconsin

The meeting was convened at 9:05 a.m. by Bob DuPont, of Regulatory Guidance and Design, LLC. Attendees introduced themselves and identified the organizations they were representing.

Regarding recent legislative activity, DuPont recapped the successful ARC lobby effort to change state law concerning review of plans for building alterations involving less than 100,000 cubic feet by delegated agents of the DSPS, as found in 2017 Wisconsin Act 198. He also recapped the successful ARC lobby effort to change state law concerning carbon monoxide detection in commercial residential buildings, as found in 2017 Wisconsin Act 330.

DuPont next reviewed provisions of 2017 Wisconsin Acts 243 and 330, as they relate to inspections conducted by the DSPS. According to DuPont, the cited provisions are somewhat contradictory, resulting in the need for careful coordination by the DSPS when implementing these laws. Act 243 contains a provision that allows a subdivision developer to request an inspection by a state building inspector if the local building inspector does not complete an inspection within 14 business days of the request for inspection. However, Act 330 says that if the Department (DSPS) has delegated authority to perform building inspection services as an agent of the Department, to a city, village, town, of county and the city, village, town, or county has assumed that responsibility, the Department may not perform building inspection services within the scope of that delegation in the city, village, town, or county.

Brian Flannery said that during a recent training event, DSPS staff said that Act 243 did not apply to inspections required under the Wisconsin Uniform Dwelling Code. DuPont suggested that a work group of ARC members explore this situation and develop draft ARC recommendation to the DSPS for all ARC members to consider. He offered that one recommendation might relate to DSPS delegation letters being revised to recognize and coordinate the building inspection options outlined in Act 243.

Regarding possible future legislative initiatives, two topics were addressed as follows:

On participation fees paid by municipalities, DuPont asked if those present were interested in continued ARC efforts to encourage repeal of participation fees paid by delegated municipalities that conduct state-level plan reviews. He recalled past ARC efforts in this regard: in 2016, asking Governor Walker to propose the repeal such fees in his 2017-19 budget proposal; and in early 2018, asking for an amendment to Assembly Bill 641. Because those efforts did not result in any change, DuPont suggested ARC members consider requesting the change again as part of the next State Budget. Among those present, there was agreement to continue pursuing this statute change. As a result, DuPont said he would next pose the question to all ARC members via email.

On wedding barns, DuPont asked if those present were interested in the ARC recommending 2019 reintroduction of 2017 Wisconsin Assembly Bill 187, concerning building safety regulations for certain existing barns if they are converted to assembly occupancies. He said it was unclear why the Senate did not take up AB 187 after it passed the Assembly on a voice vote. DuPont asked if he should explore why AB 187 did not pass, by discussing the matter with staff in the office of Representative Tranel, and with Nancy Mistele in the DOA Office of Business Development. Dave Bloom said that he believed that the fire service is generally OK with provisions of AB 187, as improved by ARC lobby efforts. Among those present there was agreement to have DuPont explore this situation with an eye towards supporting reintroduction of 2017 AB 187 during the next legislative session which begins in early 2019. As a result, DuPont said he would next pose the question to all ARC members via email.

Regarding the Attorney General’s opinion on fire sprinklers, DuPont reviewed what he feels are logic problems and general shortcomings of the AG opinion issued on December 8, 2017. He said there are similarities in the methods of statutory interpretation found in the AG’s opinion on sprinklers and the position argued by the AG relative to special elections not being ordered by the Governor. In both cases, according to DuPont, the AG ignored important and powerful statutory provisions.

The AG opinion on sprinklers, according to DuPont, could be viewed as undermining the entire Wisconsin Commercial Building Code because it fails to recognize the broad, long-standing statutory authority and assignment to the DSPS to promulgate rules for public safety within public buildings and places of employment. As a result, the entire Wisconsin Commercial Building Code may be open for challenge by anyone opposed to code requirements that are based on general statutory authority.

DuPont asked if those present were in favor of the ARC approaching a legislator to request the legislator ask for an opinion from Legislative Council; the body of attorneys that advise legislators during development of legislation and administrative rules. The request for opinion would focus on identifying and evaluating the general statutory authority and assignments of the Department of Safety and Professional Services as they relate to sprinklers and all other aspects of the Wisconsin Commercial Building Code. DuPont said it is clear that the DSPS has authority to change the sprinkler trigger from 3 units to 20 units, but it is certainly not clear that such a roll back of sprinkler safety provisions is required by state law.

There was agreement to approach a legislator concerning obtaining an opinion from Legislative Council. As a result, DuPont said he would next pose the question to all ARC members via email.

Regarding DSPS positions on application of the Wisconsin Uniform Dwelling Code, DuPont recapped the DSPS position that municipalities may not enforce the UDC on repairs made to homes originally constructed under the UDC. He also recounted the DSPS position that the UDC may not be applied to auxiliary buildings, such as garages or storage buildings.

DuPont said that in both cases, the DSPS has failed to communicate that, regardless of the UDC, both the State Electrical Code, and State Plumbing Code apply to the construction and repair of any building in Wisconsin, other than those specifically exempted by state statutes. DuPont also explained that the UDC contains ambiguous provisions relative to code applicability to repairs. He suggested that consideration be given to changing the UDC so it would reflect requirements of the Wisconsin Commercial Building Code that relate to repairs.

DuPont reported that Brad Boycks, of the Wisconsin Builders Association, has expressed interest in meeting with ARC representatives to learn more about this situation and to possibly work together to get the situation rectified through a revised code interpretation from the DSPS and changes to the UDC. DuPont suggested that he work with Brian Flannery and Ed Lisinski, of the Wisconsin Code Officials Alliance, to further explore these issues and to then meet with Brad Boycks of the WBA. DuPont said he could also work with WCOA to explore the inspection issues raised by 2017 Wisconsin Acts 243 and 330.

There was agreement for taking these next steps as suggested. As a result, DuPont said he would next pose the question to all ARC members via email.

The next meeting of Alliance Members was scheduled for July 25, 2018, from 9:00 to 10:30 a.m. The meeting will be held at the offices of the Associated Builders and Contractors of Wisconsin.

The meeting was adjourned at 10:55 a.m.

This summary report was prepared by Bob DuPont, Regulatory Guidance and Design, LLC.

It was issued on May 14, 2018.